Dirittifondamentali.it (ISSN 2240-9823)
La CEDU su libro di fiabe etichettato come dannoso per i bambini a causa del contenuto LGBTI (CEDU, Grande Camera, sent. 23 gennaio 2023, ric. n. 61435/19)
La Corte Edu si pronuncia sul caso riguardante un libro per bambini di nove-dieci anni contenente, tra l’altro, trame di relazioni romantiche e matrimoni tra persone dello stesso sesso. La distribuzione del libro era stata presto sospesa dopo la sua pubblicazione nel 2013 e ripresa un anno dopo, dopo che il libro era stato etichettato come potenzialmente dannoso per i bambini di età inferiore ai 14 anni.
Si tratta del primo caso in cui la Corte si è occupata delle restrizioni sulla letteratura in tema di relazioni tra persone dello stesso sesso destinata specificamente ai bambini.
La Corte ha rilevato che le misure contro il libro del ricorrente avevano lo scopo di limitare l’accesso dei bambini alle informazioni che descrivono le relazioni tra persone dello stesso sesso come essenzialmente equivalenti alle relazioni tra persone di sesso diverso.
In particolare, i Giudici di Strasburgo non hanno convenuto con i giudici nazionali e col governo, che certi passaggi - una principessa e la figlia di un calzolaio che dormono l’una nelle braccia dell’altra dopo il loro matrimonio - fossero sessualmente espliciti, né che il libro avesse promosso le famiglie dello stesso sesso rispetto ad altre. Al contrario, le fiabe avevano sostenuto il rispetto e l’accettazione di tutti i membri della società in un aspetto fondamentale della loro vita, vale a dire una relazione seria.
Di conseguenza, ha concluso che limitare l’accesso dei bambini a tali informazioni non aveva perseguito nessuno degli scopi che la Corte stessa potrebbe accettare come legittimi.
Per queste ragioni la Grande Camera ha ritenuto, all’unanimità, l’avvenuta violazione dell’art. 10 (libertà di espressione) della Convenzione europea dei diritti dell'uomo.
***
GRAND CHAMBER CASE OF XXXXX v. LITHUANIA
(Application no. 61435/19)
JUDGMENT
STRASBOURG 23 January 2023 This judgment is final but it may be subject to editorial revision.
In the case of XXXXX v. Lithuania,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Robert Spano, President, Jon Fridrik Kjølbro, Síofra O’Leary, Georges Ravarani, Marko Bošnjak, Ganna Yudkivska, Egidijus Kūris, Branko Lubarda, Yonko Grozev, Carlo Ranzoni,
Stéphanie Mourou-Vikström, Tim Eicke,
Arnfinn Bårdsen, Erik Wennerström, Saadet Yüksel,
Ana Maria Guerra Martins, Andreas Zünd, judges,
and Marialena Tsirli, Registrar,
Having deliberated in private on 23 March and 28 September 2022,
Delivers the following judgment, which was adopted on the last-mentioned date:
INTRODUCTION
1. The case concerns a collection of six fairy tales written by the applicant, two of which depicted marriage between persons of the same sex. After its publication, the distribution of the book was temporarily suspended, and was later resumed after the book was marked with a warning label stating that its contents could be harmful to children under the age of 14. The applicant complained about the measures imposed in respect of the book, relying on Article 10 of the Convention read alone and in conjunction with Article 14.
PROCEDURE
2. The case originated in an application (no. 61435/19) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Neringa Dangvydė XXXXX (“the applicant”), on 22 November 2019.
3. The applicant was initially represented by Mr V. Mizaras, a lawyer practising in Vilnius, and subsequently by Mr R. Wintemute and Mr M. Dingilevskis, lawyers practising in London and Vilnius respectively. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).
5. On 21 March 2020 the applicant died. Her mother and legal heir, Ms Jūratė Meškauskaitė, expressed the wish to pursue the proceedings on the applicant’s behalf.
6. On 18 June 2020 the Government were given notice of the application.
7. The applicant’s mother and the Government filed observations on the admissibility and merits of the application.
8. On 31 August 2021 the Chamber of the Second Section, composed of Jon Fridrik Kjølbro, President, Carlo Ranzoni, Aleš Pejchal, Egidijus Kūris, Branko Lubarda, Marko Bošnjak, Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber (Article 30 of the Convention and Rule 72).
9. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
10. The President granted leave to submit written comments to the Háttér Society and, jointly, to Professor David Kaye, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and ARTICLE 19 (Article 36 § 2 of the Convention and Rule 44 § 3).
11. A hearing took place in public in the Human Rights Building, Strasbourg, on 23 March 2022.
There appeared before the Court:
(a) for the Government
Ms K.BUBNYTĖ-ŠIRMENĖ, Agent, Ms N.BRUSKINA, Adviser;
(b) for the applicant
Mr R.WINTEMUTE, Counsel, Mr M.DINGILEVSKIS, Adviser.
The Court heard addresses by Ms Bubnytė-Širmenė and Mr Wintemute, as well as their replies to questions put by judges.
THE FACTS
I. PUBLICATION OF THE APPLICANT’S BOOK
12. The applicant, who was openly homosexual, was a professional writer and a specialist in children’s literature.
13. In December 2012 the publishing house of the Lithuanian University of Educational Sciences (hereinafter “the University”), a public university, applied to receive funding from the Ministry of Culture for the publication of a book written by the applicant – a collection of original fairy tales
aimed at children of younger school age. In the application for funding, it was stated that the fairy tales would be based on traditional fairy-tale motifs but would depict members of various marginalised groups, with the aim of teaching children to accept those who looked or lived differently. The fairy tales had been reviewed by an educator and by a children’s author; the reviewers considered them to be suitable for primary school-age children and emphasised the need to foster tolerance towards stigmatised social groups. Moreover, according to the reviewers, such fairy tales were undoubtedly necessary, in view of the prevalence of bullying and violence among children in Lithuania and the lack of similar literature aimed at the youngest readers.
14. In May 2013 the University signed a contract with the Ministry of Culture, whereby the Ministry agreed to provide partial funding for the publication. The University undertook to publish the book and to distribute 140 copies to public libraries across the country.
15. In December 2013 the University’s publishing house published the book Amber Heart (Gintarinė širdis), which contained six fairy tales. They depicted characters from different ethnic groups or with intellectual disabilities, and addressed issues such as stigmatisation, bullying, divorced families and emigration. Most of the fairy tales contained some depiction of loving committed relationships between men and women. In two of the six fairy tales, the main storylines concerned relationships and marriages between persons of the same sex.
16. The fairy tale “The Three Princes’ Search for Wisdom” told the story of a king who sent his three sons out into the world. The two elder princes each met an enchanted maiden and ended up marrying her, whereas the youngest one arrived at a city whose inhabitants were dark- skinned and fell in love with a male tailor. The text of the fairy tale included the following:
“The prince and the tailor stayed at the castle. No one even noticed that the tailor had slightly darker skin than other people. And it did not bother anyone that the two young men held hands and exchanged loving glances while they walked in the royal garden. So it was in this kingdom: everyone knew that the heart wants what it wants and loves whom it loves.
...
As soon as everyone sat down, the marshal made an announcement.
‘The king’s eldest son and his wife!’ ... ‘The middle son of our king and his wife!’ ... ‘The youngest son of our king and his husband!’ ...
The king’s third son stepped in with the young tailor ... [It] was still odd for [the guests] to see the two young men holding hands. The queen understood and smiled.
‘And as for this, well, the heart wants what it wants. And when the heart speaks, we have to listen. Otherwise, there won’t be any peace or joy in life.’
‘These are words of wisdom,’ the guests agreed. ‘It is a great honour to be invited by such wise sovereigns. No wonder your kingdom thrives,’ they added ...
...
After the celebration was over, the guests returned to their homes ... and [told] all their friends and neighbours that the young tailor had found the love of his life and that it happened to be a son of a king. And that was a great honour because that king was very wise ...”
17. Another fairy tale, “The Princess, the Shoemaker’s Daughter and the Twelve Brothers”, told the story of a princess who rejected numerous male suitors and cursed them by turning them
into nightingales. Eventually she married her childhood friend – a shoemaker’s daughter. After their wedding, the princess learned that the twelve brothers of the shoemaker’s daughter had been among those whom she had turned into nightingales. The two young women travelled to a foreign country where love was forbidden and where the nightingales had been caged in the castle of the evil king.
They disguised themselves as a gardener and a cook and found work in the king’s castle, where they eventually succeeded in reversing the spell cast on the twelve brothers. The text of the fairy tale included the following:
“The shoemaker’s daughter hugged the princess and repeated the words of the oath, ‘Do you agree now to be with me until death do us part?’
‘I will love you for a lifetime,’ said the princess with a relieved heart ...
But after the first night, the shoemaker’s daughter looked sad and pale. No wonder: as soon as the happy princess fell asleep with the shoemaker’s daughter in her arms, a nightingale flew to the window, sat in the bush, and began to sing. The shoemaker’s daughter listened to the sad melody until the morning and thought of her brothers. The following night, two nightingales flew in and again prevented the shoemaker’s daughter from going to sleep. The shoemaker’s daughter didn’t want to say anything to the princess. She just shook her head sadly.
This pattern of events lasted for eleven nights. Each night, a new nightingale joined the singers.
The princess did not wait for them to arrive. Once the sun went down, the princess always fell into a deep sleep. She did not notice the shoemaker’s daughter escaping from her embrace and going to the window to listen to the song of the nightingales. But in the morning, the shoemaker’s daughter would always be sad.
...
When [the princess and the shoemaker’s daughter] met in the rose garden, they hid behind a bush and embraced. They missed each other so much ...
Suddenly, the rosebush parted and the king appeared in front of them.
‘What do I see?’ he shouted. ‘My gardener is kissing my cook! You have violated the laws of this country. It is forbidden to love here. Is it not clear that families are meant only for continuation of kin and to have somebody inherit their wealth? For this crime, you will be publicly burned at the stake to set an example for others.’ ...”
18. The University published 500 copies of the book. It delivered 140 copies to sixty-six public libraries and another 130 to bookshops; of the latter, over eighty copies were sold. In February 2014 the University presented the book at the Vilnius Book Fair.
II. MEASURES TAKEN WITH REGARD TO THE BOOK
19. On 1 March 2014 one of the biggest national newspapers, Lietuvos rytas, published an article entitled “Fairy tales about non-traditional love – in children’s backpacks”. It contained a description of the two fairy tales from the book which dealt with same-sex relationships and an interview with the applicant which focused on those two fairy tales. The applicant spoke about her experience of working with children who had been victims of bullying and about her wish to foster respect for all people and all families. It was mentioned that she was a children’s author with over fifteen years’
experience and that she was openly lesbian. The article also included comments from two members
of the Lithuanian Parents’ Forum, an association, who expressed strong criticism of the fact that stories about same-sex relationships were being presented to children.
20. On 3 March 2014 the Registry of the Government received an email from an individual alleging that the book was “encouraging perversions”, and forwarded it to the Ministry of Culture. The Ministry requested the Inspectorate of Journalist Ethics (hereinafter “the Inspectorate”) to assess whether the book might be harmful to children.
21. On 20 March 2014 eight members of the Seimas (the Lithuanian Parliament) sent a letter to the rector of the University, in which they referred to the article in Lietuvos rytas (see paragraph 19 above). The letter stated that the Lithuanian Parents’ Forum and other organisations representing families had expressed their concerns about the distribution of any books which
“sought to instil in children the idea that marriage between persons of the same sex was a welcome phenomenon”. The members of the Seimas stated that they were surprised by the fact that the applicant’s book had been financed by the Ministry of Culture and published by the University. They asked the rector to explain whether the book complied with the University’s policy regarding the education of children.
22. On 27 March 2014 the rector ordered the University’s publishing house to suspend the distribution of the book. All the copies which had not yet been distributed to shops or public libraries, as well as all unsold copies in shops, were returned to storage at the University. The only copies which were not recalled were those which had already been distributed to libraries.
23. On 8 April 2014 the Inspectorate presented its conclusions to the Ministry of Culture, finding that the two fairy tales which depicted same-sex couples contained information which was harmful to minors, as provided in section 4 § 2 (16) of the Act on the Protection of Minors from Negative Effects of Public Information (hereinafter “the Minors Protection Act”). The relevant parts of the Inspectorate’s conclusions read as follows:
“Please be informed that the experts under the Inspector of Journalist Ethics who assess the impact of public information on minors have evaluated the information (fairy tales) published in the book Amber Heart and found that the information published in the fairy tales ‘The Three Princes’ Search for Wisdom’ [and] ‘The Princess, the Shoemaker’s Daughter and the Twelve Brothers’ falls into the category of information having a negative impact on minors – it meets the criterion laid down in section 4 § 2 (16) of the [Minors Protection Act] (it encourages a different concept of marriage and creation of family from the one enshrined in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania).
An attitude, as formed in the two fairy tales, that same-sex couples can create a family is incompatible with the Constitution of the Republic of Lithuania, which provides that marriage is to be concluded upon the free mutual consent of a man and a woman (Article 38), and the Civil Code of the Republic of Lithuania, in accordance with which marriage may be contracted only with a person of a different sex (Article 3.12).
It should be noted that the Act defines ‘encouraging’ as tendentious information which urges minors to take specific actions or to acquire or change their habits, attitudes, preferences or behaviour (section 2 § 5 of the Act). The information contained in the fairy tales, not only because of its content, but also because of its form (the fairy tale reflects reality through fantastical images; its seemingly naïve content and its attractive form convey the information
in a way that is comprehensible to the child), is purposeful – it is aimed, among other things, at changing attitudes and/or behaviour.
Experts point out that pre-school children and primary school pupils show a more gradual progression towards maturity. At a time marked by magical, symbolic thinking and a vivid imagination, and the introduction of the foundations of ethical-moral values, the perception and knowledge of one’s own gender and the perception and understanding of gender differences, fairy tales that portray the relationship between same-sex couples as normal and self-evident are harmful to a child’s fragile, nascent worldview and are overly invasive, directive and manipulative.
In the light of the arguments put forward, the experts are of the opinion that the information published in the book, which fulfils the criterion laid down in section 4 § 2 (16) of the Act, has a negative impact on persons under the age of 14 ...
The Inspector notes that, according to the experts’ opinion, the dissemination of information which has a negative impact on minors, contained in the book Amber Heart, is not prohibited, but in order to protect the interests of minors under the age of 14, the dissemination of such information must be restricted, that is to say, if the book is distributed in a place to which minors may have access, it must be distributed in binders or packaging the design of which does not adversely affect the development of minors and on which an appropriate warning label
‘Information may have a negative impact on persons under the age of 14’ or ‘N-14’ must be clearly visible.”
24. The Ministry of Culture forwarded the Inspectorate’s conclusions to the University and requested it to take the measures which the Inspectorate had recommended.
25. In May 2014 the rector of the University informed the eight members of the Seimas (see paragraph 21 above) that the impugned fairy tales did not comply with the University’s policy regarding the education of children and that the head of its publishing house had been given a disciplinary penalty.
26. In May 2014, in an article published on the website of the Lithuanian Human Rights Centre, a non-governmental organisation, the applicant pointed out that, in addition to the two same-sex relationships, the book also depicted eight loving relationships between persons of different sex – thus, she contended that there were no grounds to claim that the book sought to promote one particular family model. The article also quoted a representative of the University, who described the two impugned fairy tales as harmful and amounting to “primitive and biased propaganda of homosexuality” and stated that the University deeply regretted publishing them. The representative of the University furthermore stated that “according to scientists, teachers and educators, children who are too young to have an interest in certain social issues, such as narcotic drugs or different sexual orientations, should not be forcibly exposed to information about them”.
27. On 30 May 2014 the Inspectorate held a meeting with a group of experts, consisting of two lawyers and a children’s psychiatrist. They reiterated and confirmed the conclusions previously reached by the Inspectorate (see paragraph 23 above).
28. In July 2014 the applicant lodged a complaint with the administrative courts, asking them to set aside the Inspectorate’s conclusions of 8 April 2014 and the instruction given by the Ministry of Culture to the University to implement the Inspectorate’s recommendations (see paragraphs 23 and
24 above). The Vilnius Regional Administrative Court refused to accept the complaint for examination. It held that the impugned documents did not contain any orders that were binding on the addressees and thus no complaints against them could be lodged with the courts.
Furthermore, the contract regarding the publication of the book had been signed between the Ministry of Culture and the University (see paragraph 14 above), the applicant had not been a party to that contract, and therefore the impugned documents had not affected her rights or obligations. The applicant did not appeal against that decision.
29. In October 2014 the University contacted the sixty-six public libraries to which copies of the book had been delivered and asked them to mark each copy with a warning label stating that it contained information which could be harmful to children under the age of 14. From the information provided by the Government it appears that several libraries decided not to mark the books with the labels. The Government also submitted that the book remained available at the biggest library of Lithuania, the Martynas Mažvydas National Library, without any age-based restrictions and that it was listed in that library’s catalogue as aimed at five to ten-year-old children.
30. From May to November 2014 the book was available free of charge on the website of the Lithuanian Human Rights Centre. In December 2014 a second edition, consisting of 600 copies, was published by several non–governmental organisations. This edition was distributed in bookshops and libraries without any warning labels and with a sticker depicting a rainbow flag.
There is no indication that any measures were taken against the publishers or the distributors of the second edition.
31. On 25 March 2015 the rector of the University ordered the publishing house to resume the distribution of the book in accordance with the recommendations of the Inspectorate. The copies of the book which had been published but not yet distributed had to be marked with warning labels stating that the book contained information which could be harmful to children under the age of 14.
32. At the material time, the relevant legislation provided that failure to comply with the requirements for labelling or distributing published material which was harmful to minors was punishable by a warning or a fine (see paragraph 89 below).
III. DOMESTIC COURT PROCEEDINGS A. The first set of proceedings
1. The parties’ submissions (a) The applicant
33. In October 2014 the applicant lodged a civil claim against the University in which she complained about the decision to suspend the distribution of the book (see paragraph 22 above).
Following the University’s decision to resume the distribution of the book and to mark it with warning labels (see paragraph 31 above), she complained about the latter measure as well.
34. The applicant submitted that the University’s decisions had been motivated by its hostility towards her sexual orientation and towards the positive depiction of same-sex relationships in
two of the six fairy tales, as demonstrated by various statements made by the University (see paragraphs 25 and 26 above). She also submitted that the Inspectorate’s conclusions had not been legally binding on the University and that the University had taken the impugned decisions on its own initiative.
35. The applicant further contended that none of the fairy tales encouraged any kind of harmful behaviour or contradicted the concept of family as it was understood in the case-law of the Constitutional Court (see paragraph 98 below) and argued that they were suitable for children of all ages.
(b) The University
36. The University submitted that, being the publisher of the book, it had to comply with the provisions of the Minors Protection Act. It stated that the letter sent to it by several members of the Seimas (see paragraph 21 above) had raised reasonable doubts as to whether the contents of the book complied with the requirements of the Act, and for that reason it had temporarily suspended the book’s distribution.
37. The University further stated that the Inspectorate was the authority tasked with monitoring the compliance of public information with the relevant legal requirements, and it had concluded that the book did not meet those requirements. Therefore, the University had to comply with the Inspectorate’s conclusions as long as they had not been set aside by the courts.
38. Moreover, the University denied that its actions had been in any way motivated by discrimination. It submitted that the impugned measures had been taken because of the book’s possible harm to children, who “may be unable to understand the phenomena discussed therein”.
(c) The third parties
39. The Ministry of Culture and the Inspectorate, which were third parties in the proceedings, opposed the applicant’s claim on grounds similar to those relied on by the University. The Inspectorate pointed out that the University was under an obligation to comply with the Minors Protection Act and the Rules for marking and distributing public information which may be harmful to the development of minors (see paragraphs 82, 84, 91 and 92 below), and that a failure to comply with the requirements of those instruments could lead to its being held liable under the law (see paragraph 89 below).
2. Decisions of the courts
(a) The first-instance and appellate courts
40. On 16 April 2015 the Vilnius District Court dismissed the applicant’s claim. It held that the University had not undertaken an obligation towards the applicant to distribute the book in any specific manner, and in the absence of such an obligation, its decisions on how to distribute the book could not have amounted to discrimination against her. On 2 March 2016 the Vilnius Regional Court upheld that decision. It also stated that the decisions taken by the University had not been based on any discriminatory considerations but on objective grounds – namely, the University’s obligation to
comply with the Minors Protection Act and with the instructions issued by the Ministry of Culture and the Inspectorate.
(b) The Supreme Court
41. On 6 December 2016 the Supreme Court quashed the decisions of the lower courts and remitted the case for fresh examination. It found that those courts, when applying section 4 § 2 (16) of the Minors Protection Act, had failed to examine whether the applicant’s book indeed promoted a different understanding of marriage and creation of family from that which was enshrined in the Constitution and the Civil Code, or whether it merely sought to encourage tolerance towards persons of different sexual orientations. The Supreme Court further held:
“36. ... [A]lthough the courts found that the parties did not have a publishing agreement, the courts unreasonably disregarded the established fact that [the University] had in fact distributed [the applicant’s] book ...
37. Moreover, the courts which examined the case, when dealing with [the applicant’s]
argument that the distribution of her book had been stopped on discriminatory grounds on the basis of sexual orientation, rejected that argument on the sole ground that [the University]
had the right not to distribute the book and therefore, there was no basis for a finding of discrimination. The courts did not investigate at all the circumstances of discrimination alleged by [the applicant], and unjustifiably shifted onto her the burden of proving discrimination ...
[The applicant] submitted that [the University] had discriminated against her by suspending the distribution of the book on the basis of the letter ... of the Ministry of Culture of 24 April 2014 and the letter of the Inspectorate of Journalist Ethics of 8 April 2014, which stated that the information contained in the book had a negative impact on minors, that is to say, it created the notion that a family could be formed by people of the same sex.
38. In this connection, it is necessary to draw attention to the case-law of the ECtHR on the protection of the interests of minor children in the context of the dissemination of information about homosexuality ... In its case-law, the ECtHR, when analysing the necessity of restricting freedom of expression (Article 10 of the Convention) in a democratic society, focuses on the analysis of the content of the work and publication, their individual elements (such as text or illustrations) and their possible impact on minors, society and morality (not in a generalised way, but arguing those aspects in detail), the extent of the restriction imposed and its objective necessity (including consideration of the need for various possible measures, such as special labels or packaging) (see, for example, Handyside v. the United Kingdom, 7 December 1976, Series A no. 24; Vejdeland and Others v. Sweden, no. 1813/07, 9 February 2012; and Kaos GL v.
Turkey, no. 4982/07, 22 November 2016).
39. The ECtHR has also noted on numerous occasions that discrimination based on sexual orientation is just as serious as racial or ethnic discrimination. The ECtHR has interpreted the general principles under Article 14 of the Convention (prohibition of discrimination), according to which, in order for the issue raised to trigger the application of Article 14, there must be a difference in treatment between persons in similar (comparable) situations. Such unequal/different treatment is considered discriminatory if it does not have an objective and
reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the measures taken and the aim pursued.
The State has a margin of appreciation in assessing whether and to what extent differences in similar situations justify unequal treatment (see, among other authorities, Schalk and Kopf v.
Austria, no. 30141/04, § 96, ECHR 2010; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013 (extracts); and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).
40. The ECtHR has repeatedly stated that differences based on sexual orientation, like those based on gender, require ‘particularly compelling and weighty justification’ (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999-VI, and L. and V. v.
Austria, nos. 39392/98 and 39829/98, § 45, ECHR 2003-I, cited in Vallianatos and Others, § 77).
When unequal treatment is based on the grounds of gender or sexual orientation, the limits of the State’s margin of appreciation are narrow. Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see E.B. v. France [GC], no. 43546/02,
§§ 93 and 96, 22 January 2008, cited in Vallianatos and Others, § 77).
41. In the present case, the appellate court relied on the letter of the Inspectorate of Journalist Ethics of 8 April 2014 in order to justify the negative impact of the book on minors and considered it to be binding; however, the court did not carry out an independent assessment of the [Inspectorate’s] conclusion on the impact of the book on minors, nor did it investigate and assess the content of the book itself, or assess the impact of the book on minors and the proportionality of the limitation imposed on it. These circumstances are relevant in the light of Article 14 of the Convention read in conjunction with Article 10. The panel of judges notes that the Vilnius Regional Administrative Court, in its decision of 24 July 2014 ... stated that the letter of the Inspectorate of Journalist Ethics was of a recommendatory nature only and was not binding on [the University]. This letter is not binding on the court examining the case either, but it (the letter) is written evidence and must be considered together with other evidence.
42. The above-mentioned infringements of procedural law by the appellate court may have contributed to the adoption of an unlawful decision in the case (Article 346 § 2 (1) of the Code of Civil Procedure). Therefore, the decision ... of the Vilnius Regional Court of 2 March 2016 must be quashed ...”
B. The second set of proceedings
1. Proceedings before the Vilnius District Court (a) The parties’ submissions
(i) The applicant
42. During the fresh examination of the case by the Vilnius District Court, the applicant reiterated the arguments which she had presented in her initial claim (see paragraphs 33-35 above). In addition, she submitted that the book, before its publication, had been assessed by specialists in literature, psychology, educational science and other relevant fields, and they had not had any objections to its
content. By contrast, the University had not demonstrated that the impugned decisions had been based on any relevant expert assessment.
43. She also submitted to the court an opinion of a clinical psychologist, who stated that the book did not include any content which had been scientifically proven to cause harm to children.
According to the psychologist, greater harm could be caused by the prohibition on talking about homosexuality in children’s literature and on encouraging understanding and acceptance of homosexual persons, who were still being stigmatised and discriminated against in Lithuania.
The psychologist pointed out that homosexuality was not considered a mental disorder by the relevant specialist bodies, such as the American Psychiatric Association and the American Psychological Association; nor was it included in the World Health Organization’s classification of diseases, which was used in Lithuania. Furthermore, there was a scientific consensus that a person did not choose his or her sexual orientation. Therefore, fairy tales depicting same-sex relationships could not be considered harmful.
44. In addition, the applicant submitted to the court an opinion of the Human Rights Monitoring Institute, a non-governmental organisation. This opinion referred to the case-law of the Court, according to which social acceptance of homosexual persons was not irreconcilable with respect for family values, and there was no evidence that the mere mention of homosexuality, or an open discussion about the social status of sexual minorities, could have a negative effect on children (references were made to, among other authorities, Alekseyev v. Russia, nos. 4916/07 and 2 others, 21 October 2010, and Bayev and Others v. Russia, nos. 67667/09 and 2 others, 20 June 2017).
45. Moreover, the applicant argued that although the text of section 4 § 2 (16) of the Minors Protection Act appeared to be neutral, in practice it was relied on exclusively with the aim of limiting the freedom of expression of homosexual persons. Therefore, it gave rise to indirect discrimination.
46. Lastly, she submitted that she was a specialist in children’s literature with extensive experience in that field, but the impugned decisions of the University had demonstrated mistrust in her competence and thus harmed her professional reputation.
(ii) The University
47. The University submitted that the impugned measures had not been based on any discriminatory considerations but on objective grounds. It stated that the positions expressed by members of the Seimas, the Inspectorate and the Ministry of Culture (see paragraphs 21, 23 and 24 above) had given it sufficient grounds to believe that the book contained information which could be harmful to children. Thus, it had taken the impugned measures in order to avoid violating the Minors Protection Act. The University contended that any further distribution of the book was only possible after it had been marked with warning labels, unless the court ruled that it did not contain any harmful information.
(iii) Institutions providing an expert assessment
48. The Vilnius District Court changed the procedural status of the Inspectorate from a third party to an institution providing an expert assessment and requested it to assess whether the
information contained in the book complied with the provisions of the Minors Protection Act. The Inspectorate delivered its assessment to the court, in which it reiterated its previous conclusions (see paragraphs 23 and 27 above).
49. The court also requested the Office of the Ombudsperson for Children’s Rights to provide an expert assessment of the book. That institution stated that it did not have the competence to assess the contents of literature or other types of public information. Nonetheless, it emphasised the importance of protecting children from being exposed to possibly harmful information and considered that warning labels were generally a useful and necessary tool to enable parents to decide which information their children should have access to, in accordance with the child’s age, mental and emotional maturity, and the family’s values. It also stated that it was not familiar with any scientific research concerning the effects which exposure to information about same-sex relationships might have on children.
(b) The Vilnius District Court’s decision
50. On 2 March 2018 the Vilnius District Court dismissed the applicant’s claim. It found that the University had fulfilled its obligations, arising from the contract with the Ministry of Culture, to publish the book and distribute a certain number of copies to public libraries (see paragraphs 14 and 18 above), and that it had not undertaken any obligation vis-à-vis the applicant as to how the book should be distributed.
51. When assessing whether the measures taken with respect to the book had been justified, the court firstly observed that the Inspectorate, which was the authority charged with supervising how publishers complied with the Minors Protection Act (see paragraph 85 below), had concluded that the book did not comply with section 4 § 2 (16). It further stated:
“The court notes that, in accordance with Article 38 § 3 of the Constitution of the Republic of Lithuania, marriage is to be concluded upon the free mutual consent of a man and a woman. In accordance with Article 3.7 § 1 of the Civil Code, marriage is a voluntary agreement between a man and a woman to create legal family relations ... These provisions mean that in the Republic of Lithuania, a family is considered to be a union freely entered into by persons of different sex, and this is the way in which the concept of family is understood by the majority of society. One has to agree with the experts who state that pre-school children and primary school pupils have a more gradual progression towards maturity. During the examination of the case, [the applicant] stated that her book Amber Heart was aimed at nine to ten-year-old children. The court notes that the maturity of children of this age is presumably low and that children of this age are beginning to take an interest, albeit unconsciously, in the characteristics of the opposite sex. As the child learns that people of the same sex can love each other, that ‘... the heart wants what it wants and loves whom it loves ...’, ‘... the youngest son of our king and his husband ...’,
‘... The king’s third son stepped in with the young tailor ...’, ‘... the guests ... [told] all their friends and neighbours that the young tailor had found the love of his life and that it happened to be a son of a king. And that was a great honour because that king was very wise ...’, ‘“I will love you (the shoemaker’s daughter) for a lifetime,” said the princess with a relieved heart ...’, ‘... after the first night, the shoemaker’s daughter looked sad and pale. No wonder: as soon as the happy
princess fell asleep with the shoemaker’s daughter in her arms ...’, ‘... she (the princess) did not notice the shoemaker’s daughter escaping from her embrace ...’, ‘“I will do anything for my beloved to regain her lost brothers!” cried the princess ...’, ‘... When [the princess and the shoemaker’s daughter] met in the rose garden, they hid behind a bush and embraced. They missed each other ...’, ... it can be argued that this influences the formation of [the child’s]
personality (including sexuality). [The applicant] has not put forward convincing arguments as to why this type of information should not be provided to minors [only] after they reach a certain age, as in this case, the age of 14. Apparently [matyt], this age limit is set by professionals on the basis of objective criteria, and we can see warnings about the age restriction in visual material such as films (‘N-7’, ‘N-14’).”
52. The Vilnius District Court emphasised that it was necessary to strike a fair balance between two competing values – the applicant’s right to freedom of expression and the need to protect children from potentially harmful information. The interests of parents, who were primarily responsible for the upbringing of their children, also had to be taken into account. The court considered that the impugned decision had not had a disproportionate effect on the applicant’s freedom of expression because the book had not been banned or removed from distribution.
Lastly, with regard to the applicant’s complaint that the University’s actions had been discriminatory, the court held as follows:
“The court, having found that the restriction imposed was well-reasoned, concludes that the University did not intend to discriminate against [the applicant] and that ... it imposed the impugned restriction on the basis of an opinion of a public authority, in order to protect the interests of minors ... The court points out that the book Amber Heart was partly financed by the State budget and that [the University], which is bound by an agreement with the Ministry of Culture, should not be obliged to distribute the work by any means whatsoever, at its own expense, on the sole basis of the fact that [the applicant] believes that it is discriminatory, disregarding the conclusion of the competent authorities that the information contained in the book is harmful to minors under the age of 14.
...
In the light of the foregoing, the court concludes that, by ... resuming the distribution of the book Amber Heart with additional information on the restriction of its distribution to persons under the age of 14, in accordance with the assessment made by the Inspectorate of Journalist Ethics, the University followed the recommendation of the competent public authority, and there are no grounds to conclude that the University has a negative attitude towards [the applicant] on the basis of her sexual orientation. It should be pointed out that the dispute arose out of the book, that is to say, the information contained therein, and its potential impact on persons under the age of 14, and not out of the fact that the University (or its representative) had expressed dissatisfaction with [the applicant’s] personality, which could be regarded as discrimination (section 2 § 1 of the Equal Treatment Act).”
2. Proceedings before the Vilnius Regional Court (a) The parties’ submissions
53. The applicant lodged an appeal against the above-mentioned decision, in which she presented essentially the same arguments as before (see paragraphs 33-35 and 42-46 above). In addition, she argued that the first-instance court had not properly assessed the book’s contents, had relied exclusively on the Inspectorate’s conclusions, and had not explained why it had considered certain sentences in the impugned fairy tales (see paragraph 51 above) to be harmful to children, rather than encouraging diversity and tolerance. She further contended that it had not followed the case-law of the European Court of Human Rights and that it had disregarded the opinion of the psychologist which she had submitted (see paragraph 43 above).
54. In its reply, the University submitted, inter alia, that as long as section 4 § 2 (16) of the Minors Protection Act was in force, it had no choice but to comply with it, irrespective of any alleged conflict between that legal provision and the case-law of the Court.
(b) The Vilnius Regional Court’s decision
55. On 19 February 2019 the Vilnius Regional Court dismissed the applicant’s appeal. It firstly addressed her arguments concerning discrimination and held as follows:
“45. Although [the applicant] argues that the distribution of the book was stopped on discriminatory grounds of sexual orientation, the answers of [the University’s] representative to the journalist’s questions [in the article published on the website of the Lithuanian Human Rights Centre] show that [the University’s] perception of the problem of values was not due to the book’s depiction of same-sex relationships, but rather to the inappropriate form of the presentation of cohabitation. [The University] considered the fairy tale ‘The Princess, the Shoemaker’s Daughter and the Twelve Brothers’ to be harmful not because of the sexual orientation of the princess and the shoemaker’s daughter, but because of the strong emphasis on the disclosure of sexual desire, thus promoting same-sex relationships ...
46. The panel of judges notes that throughout the period following the suspension of the distribution of the book, [the University’s] representatives were extremely cooperative with [the applicant] and did not express any discriminatory attitudes towards her ... [The applicant] was offended only when [the University] offered to continue distributing the book with the label ‘N- 14’.
...
50. It should also be noted that the publisher of the book is the former Lithuanian University of Educational Sciences, whose activities were subject to extremely high ethical standards owing to its vision of education; therefore, suspending the distribution of the book while seeking to clarify the situation is in line with the principle of reasonableness (Article 1.5 of the Civil Code) and does not have a discriminatory context. The situation was fully in line with the principle of good administration when, after receiving a letter from the Ministry of Culture of the Republic of Lithuania, as a legal entity that had provided funding from the State budget, [instructing it]
to restrict the distribution of the book ..., [the University] suspended its distribution.
51. In the absence of a discriminatory causal link between [the University’s] conduct and the consequences (suspension of the distribution of the book) (Articles 6.246-6.249 of the Civil
Code), [the applicant’s] complaint concerning the suspension of the distribution of the book on discriminatory grounds is dismissed ...”
56. When addressing the proportionality of the impugned restrictions, the Vilnius Regional Court held that the first-instance court had properly assessed the harm which the book could cause to children. It quoted the conclusion reached by the Inspectorate that the two impugned fairy tales were harmful to minors, within the meaning of section 4 § 2 (16) of the Minors Protection Act, and the arguments on which the Inspectorate had relied when reaching that conclusion (see paragraph 23 above). In the court’s view, the opinion of the psychologist submitted by the applicant (see paragraph 43 above) could not refute the Inspectorate’s findings because it was not clear what criteria the psychologist had used to assess the contents of the book.
The court further stated:
“57. During the examination of the case, [the applicant] stated that her book Amber Heart was aimed at nine to ten-year-old children. [She] explained in [the annotation printed at the end of the book] that fairy tales had an educational and didactic function: by interpreting the motifs of traditional fairy tales, new models were created, teaching [children] to accept differences in the appearance and lifestyles of others ...
58. The panel of judges, having familiarised themselves with the content of a collection of traditional Lithuanian folk tales, Sigutė, point out that, for example, in the fairy tale ‘About Twelve Brothers Flying as Black Crows’ they did not find any scenes of sleeping together on the first night, hugging, or any other detailed depiction of physical love. Meanwhile, in the fairy tale ‘The Princess, the Shoemaker’s Daughter and the Twelve Brothers’ there is such a depiction: ‘“I will love you (the shoemaker’s daughter) for a lifetime,” said the princess with a relieved heart ...’, ‘... after the first night, the shoemaker’s daughter looked sad and pale. No wonder: as soon as the happy princess fell asleep with the shoemaker’s daughter in her arms ...’, ‘... she (the princess) did not notice the shoemaker’s daughter escaping from her embrace ...’ ...
59. ... [If] a traditional fairy tale is being interpreted, it should be borne in mind that for Catholic society the number twelve has a certain symbol of sacredness. Consequently, the fairy tale chosen for interpretation and the form in which its contents are presented should be such ... as not to necessitate the protection of other values.
60. Similarly, the fairy tale ‘The Three Princes’ Search for Wisdom’, referred to by both the experts and the court, is not aimed at demonstrating a new model, but at assessing it, forming a certain attitude towards gender: ‘... the guests ... [told] all their friends and neighbours that the young tailor had found the love of his life and that it happened to be a son of a king. And that was a great honour because that king was very wise ...’ ... The question then arises as to whether [the applicant] herself does not seek to discriminate against members of society who hold different values.
...
63. In the present case, the first-instance court concluded that [the applicant] had not put forward convincing arguments as to why this type of information should not be made available to minors [only] after they reached a certain age, such as, in the present case, the age
of 14, and therefore decided that the marking of the copies of the book Amber Heart with a warning label stating that ‘Information may have a negative impact on persons under the age of 14’ constituted a proportionate restriction of her rights. The panel of judges agrees with this conclusion, as parents are responsible for the primary socialisation of children; therefore, before purchasing a book, they should first assess its content, about which sufficient information should be provided (Article 26 § 3 of the Constitution). In fact, the information contained in the letter of the Inspectorate of Journalist Ethics performed the function of a book review, which cannot be considered discriminatory against [the applicant]. The distribution of the book was not prohibited, the distributed copies of Amber Heart were not removed from libraries, [and] no attempt was made to return the books that had been sold. The decision to mark the book with a warning label is a proportionate measure aimed at protecting the interests of children, which is also a constitutional value (Articles 38 and 39 of the Constitution).
64. A fairy tale is a genre of literature: usually a plot-driven work of literature characterised by supernatural characters, magical objects, non-existent places, and so on ... Consequently, this genre should not be based on details that directly show the carnal aspect of life. Thus, the marking of copies of Amber Heart with the warning ‘Information may have a negative impact on persons under the age of 14’ is based not on the fact that it depicts a same-sex model of life, but on the fact that it is portrayed in a way that is too explicit for nine to ten-year-old children.”
57. Lastly, the Vilnius Regional Court upheld the conclusion of the lower court that, when ordering the impugned measures, the University had complied with an instruction given by the public authority empowered to do so under the Minors Protection Act, and that it had relied on the entirety of the available evidence.
3. Proceedings before the Supreme Court
58. The applicant lodged an appeal on points of law, in which she relied on essentially the same arguments as those which she had presented before the lower courts (see paragraphs 33-35, 42-46 and 53 above). In addition, she submitted that the findings of the Vilnius Regional Court that the book depicted physical love too explicitly or that it sought to discriminate against persons holding different values had disregarded the book as a whole and were unfounded.
59. On 24 May 2019 the Supreme Court refused to accept for examination the applicant’s appeal on points of law, on the grounds that it did not raise any important legal questions.
RELEVANT LEGAL FRAMEWORK
I. DOMESTIC LAW AND PRACTICE A. Constitution
60. The relevant provisions of the Constitution state:
Article 25
“Everyone shall have the right to have his own convictions and freely express them.
No one shall be hindered from seeking, receiving or imparting information and ideas.
The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life or morals, or to defend the constitutional order.
The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation ...”
Article 29
“All persons shall be equal before the law, courts, and other State institutions and officials.
Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views.”
Article 38
“The family shall be the basis of society and the State.
Family, motherhood, fatherhood and childhood shall be under the protection and care of the State.
Marriage shall be concluded upon the free mutual consent of a man and a woman.
...
The right and duty of parents shall be to bring up their children to be honest people and faithful citizens, and to support them until they reach the age of majority ...”
Article 40
“...
Schools of higher education shall be granted autonomy.
The State shall supervise the activities of establishments of teaching and education.”
B. Civil Code
61. In line with Articles 3.7 and 3.12 of the Civil Code, a marriage may be concluded only between a man and a woman.
62. Chapter XV of Book 3 of the Civil Code regulates registered civil partnerships between different-sex couples. As stated in the Act on the Approval, Entry into Force and Implementation of the Civil Code, the provisions of Chapter XV of Book 3 will enter into force when a law on civil partnership is enacted, but no such law has been enacted to date. On 25 May 2021 a draft law on civil partnerships, which would be available to both same-sex and different-sex couples, was presented to the Seimas. However, at the first reading, it did not attain enough votes to progress to the next legislative stage. On 26 May 2022 a new draft law on civil partnerships was presented to the Seimas and, after a vote, progressed to the next legislative stage. At the time of the adoption of this judgment, the Seimas had not yet voted on whether to pass the law.
63. Lithuanian legislation does not provide for any other possibility of legal recognition of same-sex unions.
C. Science and Education Act
64. Section 7 § 3 of this Act states, inter alia, that a public university is a public-law entity which functions as a public institution.
65. Section 8 § 1 provides that universities have autonomy which covers their academic, administrative, economic and financial activities and which is based on the principles of self- governance and academic freedom. Under section 8 § 2 (7), universities have the right to publish educational, scientific and other literature.
D. Equal Treatment Act
66. Section 2 § 1 defines discrimination as direct or indirect discrimination, harassment or an order to discriminate against someone on the grounds of, inter alia, his or her sex, race, national or ethnic origin, social status, religion, belief, convictions or views, age, sexual orientation or disability.
67. Under section 4, when allegations of discrimination are examined by the courts or other authorities, once the claimant indicates the circumstances which give grounds to believe that direct or indirect discrimination has occurred, that fact is presumed and the burden shifts to the defendant to demonstrate that there has been no discrimination.
E. Act on the Protection of Minors against Negative Effects of Public Information (Minors Protection Act)
1. Legislative history
68. The Minors Protection Act was enacted on 10 September 2002 and entered into force on 18 September 2002. At that time, section 4 § 1 provided a list of categories of information which was considered to be harmful to minors’ physical, intellectual or ethical development. Under section 4 § 1 (3), that included information which was of an erotic nature and, inter alia, encouraged sexual desire or depicted sexual intercourse. The Act did not contain any provisions related to the depiction of homosexuality or same-sex relationships, or provisions referring to the concept of family or to family values.
(a) Proposed amendment of 2006
69. In 2006 several members of the Seimas introduced a proposal to amend section 4 § 1 of the Minors Protection Act by expanding the list of categories of harmful information and including in it, inter alia, information which “is related to encouraging homosexual relations”. The explanatory report stated that the proposal had been prompted by citizens’ complaints about the recently increasing “promotion of relationships between persons of non-traditional sexual orientation” in the mass media, where such relationships were often presented as “a norm of life or an example to be followed”. According to the explanatory report, since the worldview of minors was not yet fully developed, encouraging non-traditional sexual orientations or providing information in which homosexual relations were portrayed in a sympathetic manner might negatively impact their physical, intellectual and moral development. Therefore, the aim of the proposed amendment was to protect minors from such negative effects and to strengthen traditional family values.
70. The proposed amendment was assessed by the Department of European Law under the Ministry of Justice, which concluded that it did not comply with the relevant European Union (EU) law. In its assessment, the Department stated that the notion of “encouraging homosexual relations” was subjective and that it would be difficult to determine which information
“encouraged” such relations. Moreover, the proposed amendment referred to information which was “related to” encouraging homosexual relations, which could encompass nearly all information about persons of non-traditional sexual orientation. Thus, in the Department’s view, the amendment could lead to a restriction or prohibition of any, or a large part of, information about homosexual relations, which would not be compatible with Articles 10 and 14 of the Convention and EU law on the right to freedom of expression and prohibition of discrimination on the grounds of, inter alia, sexual orientation.
71. The proposed amendment was eventually withdrawn.
(b) Proposed amendments of 2007-2009
72. A new proposal for amending the Minors Protection Act was introduced before the Seimas in 2007 and revised several times in 2008 and 2009. It initially proposed to include in section 4 § 1 information which “advocates in favour of homosexual relations”. The wording was later changed to information which “advocates in favour of homosexual, bisexual or polygamous relations” and eventually to information which “promotes homosexual, bisexual or polygamous relations”. It was also proposed to include under section 4 § 1 information which “distorts family relations [or] expresses contempt for family values”. The explanatory report did not address those provisions. The Department of European Law found that the proposed amendment did not violate the relevant EU law.
73. On 16 June 2009 the Seimas adopted the amendment to the Minors Protection Act.
However, on 26 June 2009 the President exercised his veto power; he refused to sign the amended Act and returned it to the Seimas. The President’s decree stated that the criteria for determining which information was considered to be harmful to minors had been formulated in an unclear and abstract manner, as a result of which nearly all public information might be found to have a negative effect on the psychological, physical, intellectual or moral development of minors. Such abstract and unclear criteria gave unjustifiably wide discretion to the authorities in charge of supervising the authors and publishers of public information and made it especially difficult for the authors and publishers to comply with the provisions of the Act. The President considered that this created preconditions for violating the right to freedom of expression, protected by the Constitution.
(c) Adopted amendment of 14 July 2009
74. On 14 July 2009 the Seimas voted to overrule the President’s veto and adopted the amendment to the Minors Protection Act. Section 4 § 1 (14) of the amended Act referred to information which “promotes homosexual, bisexual or polygamous relations” and section 4 § 1 (15) referred to information which “distorts family relations [or] expresses contempt for family values”. The amended Act was set to enter into force on 1 March 2010.
75. On 22 July 2009 the Government submitted a proposal to amend section 4 § 1 (14), so that it would refer to information which “deliberately advocates in favour of sexual relations”. In the explanatory report it was stated that the aim of the proposal was to address the negative international reaction to the adopted wording of section 4 § 1 (14). The proposal was assessed by the Department of Law of the Seimas Registry, which expressed doubts as to whether the notion of
“deliberately advocating” was sufficiently clear and whether it might create problems for the practical implementation of the law. It appears that the Seimas did not debate or vote on the proposal.
(d) Proposed amendment and parliamentary debate leading to the adoption of the current version of section 4 § 2 (16) of the Minors Protection Act
76. On 19 October 2009 the President submitted to the Seimas a proposal to amend several provisions of the Minors Protection Act which had been adopted on 14 July 2009. In the proposal, the list of categories of information which was considered harmful to minors was provided in section 4 § 2. That list did not contain any provisions explicitly mentioning homosexuality. Section 4 § 2 (13) referred to information which “encourages sexual coercion and exploitation of minors or sexual relations among children”, whereas section 4 § 2 (14) referred to information which
“expresses contempt for family values”. According to the explanatory report, the proposed amendment had been prompted by, among other factors, doubts concerning the compliance of some of the provisions of the Minors Protection Act with the fundamental principles enshrined in the Constitution, such as equality of treatment, prohibition of discrimination, and protection of the right to freedom of expression, as well as the lack of legal certainty, which made it necessary to clarify some of the criteria. The explanatory report also stated that early or coercive sexual relations were harmful to minors, irrespective of whether such relations were heterosexual or not; therefore, the provision which referred to “promoting homosexual, bisexual or polygamous relations” should be changed and instead refer to “encouraging sexual coercion and exploitation of minors or sexual relations among children”. It was also necessary to clarify the provision which referred to the protection of the family, by removing the vague notion of “family relations” and focusing on contempt for family values.
77. The proposed amendment was subsequently revised several times. As regards the proposed section 4 § 2 (14), which referred to information which “expresses contempt for family values”, there were proposals to change its wording to, for example, information which “expresses contempt for family values, [or] encourages a concept of family which does not correspond to the concept of family enshrined in the laws of the Republic of Lithuania, and different relations between the sexes”.
78. In the final proposal, section 4 § 2 (14) referred to information which “encourages sexual coercion and exploitation of minors or sexual relations among minors” and section 4 § 2 (16) referred to information which “expresses contempt for family values, [or] encourages a different concept of marriage and creation of family from the one enshrined in the Constitution and the Civil Code”.
79. The Seimas held a debate on the proposal on 17 December 2009. Seven members spoke about the proposed text of section 4 § 2 (16). According to the official record of the debate, their comments were as follows:
V.S.: “... The debate regarding this proposed amendment revealed a much more global problem. We all understood that various protests here and elsewhere, supposedly because of unclear or undefined criteria, had been caused by one criterion in the draft – non-traditional sexual relations. Thus, this discussion essentially reflects the conflict of values and ideologies which is going on in Europe, efforts to change the European tradition ... The present proposal ... aims to create such legal regulation which would neither violate fundamental human rights and freedoms, nor punish our traditions and recognised values ...”
B.V.: “Dear colleagues, I wish to commend [the Parliamentary Committee on Education, Science and Culture] for removing that scandalous provision on homosexual, bisexual and polygamous relations, for which, truth be told, some ambassadors threatened that Lithuania might even be expelled from the EU. And indeed, enough with the shame ... There are some things which still perplex me, particularly with regard to the concept of marriage and creation of family. I believe that this introduces partial censorship. I appeal to the Christian Democrats.
You should love each creation of God, regardless of whether he is perfect in your eyes or not.
And leave individuals’ personal lives to them, do not force your values onto them ...”
P.G.: “I believe that this law, as we all know, reflects certain moral attitudes of our Parliament, an attitude towards the family and education of children ... Rotten Europe is fighting to the death so that children would not be protected from negative sexual education;
the same rotten Europe which talks about, and which should promote, fundamental human values seeks to exploit youth and children, so that perverts may freely promote their lifestyle and recruit more followers ... When you talk to our high-level officials, when you hear ... that [they are influenced by] the heads and ambassadors of EU countries, that this law of ours caused a huge resonance even in the European Parliament, and when you see in the news that the UK Prime Minister, Gordon Brown, says that he will do everything to legalise homosexual marriage in the whole of Europe... and our youth grows up hearing all that! I believe that, when looking at this draft, we have to concede that our Parliament gave in to pressure from the politicians of rotten Europe. [The Seimas is] afraid to call things by their real names, to put into law what is one of the biggest threats today – namely, homosexualism and bisexualism.
That has been struck out from the text in an attempt to somehow appease those who, undoubtedly, influence our politicians. I was hoping that the Seimas would be more resistant and would adopt a determined law, without paying attention to all those attacks from the politicians of rotten Europe ...”
G.S.: “... When debating anew the proposed amendment to [the Minors Protection Act], we have three main options. The first option is to reject the new proposal, and then the previous amendment, which had been adopted by a significant majority in the Seimas, would enter into force. If we choose this option, there would be no risk of another veto from the President, ...
and there would be no risk of any sanctions from the EU, because under the law, the Seimas would be obliged to amend the Act only if the EU Court of Justice adopted a decision to that effect. And if someone applies to the European Court of Human Rights in Strasbourg, complaining that he is not allowed to promote homosexualism among minors and calling it discrimination, the chances of winning such a case against Lithuania would be minimal ...
